Citation NR: 9727227
Decision Date: 08/05/97 Archive Date: 08/14/97
DOCKET NO. 97-01 403 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUE
Entitlement to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
S.R. Horn, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to
December 1945.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from an August 1994 decision by the VA RO in
Buffalo, New York, which denied service connection for a
psychiatric disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends he has a psychiatric disorder that
developed in service, warranting service connection.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claim for
service connection for a psychiatric disorder must be denied
as not well grounded.
FINDING OF FACT
The veteran’s claim for service connection for a psychiatric
disorder is implausible.
CONCLUSION OF LAW
The veteran’s claim for service connection for a psychiatric
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from February
1943 to December 1945. His service medical records are not
in the claims folder, and several notices from the National
Personnel Records Center (NPRC) show they were destroyed in
the fire that occurred there in 1973.
Private medical records from September 1993 show the veteran
was hospitalized for approximately one week with complaints
of weakness, loss of balance, dizziness, sweating, and heart
palpitations. He gave a history of one dizzy spell per week
for the past few years, and said they had become more severe
and frequent in the last 3 weeks. The veteran was admitted
for evaluation of suspected cerebrovascular or cardiovascular
problems. He gave no previous history of any psychiatric
disorder. It was noted that a magnetic resonance imaging
(MRI) test was aborted due to the veteran’s extreme
apprehension from being in a confined space, and it was noted
he refused any MRI in the future due to claustrophobia. The
primary discharge diagnosis was vertebrobasilar syndrome with
evidence of mid brain/ pontine dysfunction. Other listed
diagnoses included claustrophobia.
Private medical records from January 1994 show the veteran
was examined by Bal M. Nemani, M.D., a private psychiatrist.
The records show the veteran complained of claustrophobia
with rapid heart beating and rapid breathing. He gave a
history of having these symptoms for 30 years, and said they
had been manageable. He gave a history of a “little problem
of a stroke” 30 years ago. He also gave a history of a panic
attack while being transported in a boxcar with 100 soldiers
in service during World War II. He said he recovered and
could function without a problem after the boxcar was
emptied, but had some difficulty and anxiety attacks since
the stroke 30 years ago. The veteran also said the symptoms
had increased since that time and this increase was
precipitated by the panic attack he had during a September
1993 MRI. The doctor noted a history of past psychiatric
treatment was not fully available. Following mental status
examination, the doctor stated the veteran had some
psychiatric problems for more than 30 years, beginning in
service, which he was able to handle, and an inability to
function normally since stroke-like symptoms 30 years ago.
The diagnoses were generalized anxiety disorder, panic
disorder with agoraphobia, and mixed personality disorder.
In January 1994, the veteran filed a claim for service
connection for a psychiatric disorder.
In an information request form for the National Archives and
Records Administration (NA Form 13055), dated in May 1995,
the veteran stated that he had panic attacks in service, but
he reported no treatment in service.
In a May 1995 written statement, the veteran said he began to
experience feelings of lightheadedness, sweating,
palpitations, and difficulty breathing 2 years after
separation from service. He said he saw a doctor at this
time, who could not find anything wrong with him. He said
his family then sent him to a psychiatrist in the late 1940s
or early 1950s, and said he stopped seeing this doctor
because he was not helping him. The veteran said he
continued to experience these symptoms over the years, and
has coped with them. He said he again sought medical
treatment for these symptoms in 1977, and was hospitalized to
undergo tests; he said he was diagnosed as having allergies.
He said he had the same symptoms in 1993 and sought treatment
at a hospital emergency room, where he had a panic attack
while undergoing an MRI. He said that he remained in bed for
7 months, required help in confined spaces, and required the
company of his wife at all times after this panic attack.
The veteran said he then received psychiatric treatment, and
that Dr. Nemani told him the experiences he had in service
(being in a crowded cattle car, and traveling on narrow
mountain roads) had affected him during the ensuing years and
“came to a head” currently.
In an August 1996 statement, [redacted] [redacted] identified himself
as the veteran’s company commander and said the veteran was
assigned to him in France after the war. He said the veteran
had asked him for a job assignment, and he assigned the
veteran to be a waiter in the officer’s mess hall. He said
the veteran appeared to have been in a state of confusion
when he reported to him.
In a September 1996 statement, [redacted] stated the
veteran received medical treatment since separation from
service. A September 1996 statement from [redacted], who
identified herself as the veteran’s sister, shows she
believed the veteran needed psychiatric treatment after he
returned from service, and that their family paid for it.
She stated the veteran stopped receiving medical treatment
after about 2 months because his doctor at that time wanted
to administer shock treatment.
In a September 1996 statement, the veteran said his memory
was blank after his panic attack on the train in service. He
said he had gone AWOL (absent without leave), and was then
found by military police who directed him to Captain [redacted].
He said Captain [redacted] gave him a job waiting on tables in
the officer’s mess hall in order to keep an eye on him. The
veteran said he also had a panic attack while pulling guard
duty in a German concentration camp with prisoners of war.
The veteran said he had sweating, headaches, confusion, and
difficulty breathing immediately after service for 2 years,
which prompted his family to arrange for him to receive
medical treatment 2 years after service.
In his December 1996 substantive appeal, the veteran
indicated he received no psychiatric treatment in service,
and records of post-service treatment were unavailable except
for recent treatment from Dr. Nemani.
II. Analysis
The threshold question regarding the claim, for service
connection for a psychiatric disorder, is whether the veteran
has met his initial burden of submitting evidence to show
that his claim is well grounded, meaning plausible. 38
U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990). If he has not done so, there is no VA duty to assist
him in developing facts pertinent to his claim, and the claim
must be denied. Id. For the reasons explained below, the
Board finds that the claim for service connection for a
psychiatric disorder is not well grounded.
The requirements of a well-grounded claim are summarized in
Caluza v. Brown,
7 Vet.App. 498 (1995). There must be competent evidence of a
current disability (a medical diagnosis). Brammer v.
Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2
Vet. App. 141 (1992). There must also be competent evidence
showing incurrence or aggravation of a disease or injury in
service (medical evidence or, in some circumstances, lay
evidence). Layno v. Brown, 6 Vet. App. 465 (1994);
Cartwright v. Derwinski, 2 Vet. App. 24 (1991). There must
also be a nexus between the in-service injury or disease and
the current disability (medical evidence). Lathan v. Brown,
7 Vet. App. 359 (1995); Grottveit v. Brown, 5 Vet.App. 91
(1993).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic
diseases, including psychoses, which become manifest to a
compensable degree within the year after service, will be
rebuttably presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
A personality disorder is not a disability for VA
compensation purposes and may not be service connected.
38 C.F.R. § 3.303(c).
The veteran asserts he had panic attacks in service,
including during transportation in a crowded cattle car, and
that he has suffered from anxiety ever since. Due to a fire
at the NPRC, his service medical records are not available;
however, even if they were, the veteran states they would be
negative for any psychiatric problems as he did not receive
any treatment for a psychiatric disorder in service. The
first medical evidence of any psychiatric disorder is not
until September 1993, decades after service, when the veteran
was diagnosed as having claustrophobia as the result of being
unable to submit to an MRI study in a confined space.
The post-service medical records of Dr. Nemani show he
diagnosed the veteran as having a generalized anxiety
disorder and a panic disorder (as well as a personality
disorder, for which service connection is precluded) in
January 1994, also many years after service. These records
show Dr. Nemani recited the veteran’s history of having had
psychiatric problems since service and especially for the
last 30 years; however, such is a mere transcription of the
veteran’s self-reported and unsubstantiated lay history, and
does not constitute competent medical evidence to link a
psychiatric disorder to service, as required to make the
claim well grounded. LeShore v. Brown, 8 Vet.App. 406
(1995).
The veteran’s statement that Dr. Nemani told him the panic
attack he had following the September 1993 MRI was a
culmination of years of anxiety and panic attacks since
service is not competent medical evidence because, a layman’s
account, filtered through a layman’s sensibilities, of what a
doctor purportedly said, is simply too attenuated and
inherently unreliable to constitute the medical evidence
required to make a claim well grounded. Dean v. Brown, 8
Vet.App. 449 (1995). The lay statements from the veteran’s
friend and sister to the effect that he had psychiatric
problems after service are not competent medical evidence
because, as laymen, they have no competence to give a medical
opinion on the diagnosis or etiology of a condition.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). For the same
reason, the veteran’s statements that his current psychiatric
disorder is etiologically related to in-service incidents of
anxiety are also not competent medical evidence. Id.
There is no competent medical evidence of an etiologic
relationship between a current psychiatric disorder and any
incident of service. By the veteran’s own admission, he
received no medical treatment for and was not diagnosed as
having a psychiatric disorder in service. The lay statement
of his former commanding officer, [redacted], to the
effect that the veteran appeared confused while waiting
tables in service does not show he had a psychiatric
disorder, and, moreover, Mr. [redacted] is a layman and has no
competence to give an opinion on the diagnosis or etiology of
a condition. Id.
In summary, the veteran has not submitted competent medical
evidence of a link between the current disability and any
incident of service. The Board therefore concludes that his
claim for service connection for a psychiatric disorder must
be denied as not well grounded.
ORDER
Service connection for a psychiatric disorder is denied.
L.W. TOBIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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